Korematsu and Cricket – A critique of India’s Supreme Court during the pandemic

While the majority judgment of the Supreme Court of India in ADM Jabalpur case is rightly regarded as one of its worst acts of dereliction of duty to the Constitution, history may well say that the period of the undeclared emergency of Covid19 was its Korematsu moment. Has the Supreme Court of Indian let down the people of Indian as never before? Read, on. 

THE sudden attack on Pearl Harbor forced the President's Roosevelt's hands. The United States could not longer covertly assist its allies across the Atlantic.  She formally declared War on the Axis nations.  This was a decisive moment which turned the course of the war. However, FDR did something else as well. He issued Executive Order No 9066 on 19.2.1942 which authorized the War Department to create "military areas" from where any declared class of Americans could be excluded.  Like measures nearer home, it was innocuous and could not be faulted.   What unfolded was another story altogether. Under the cover of this Order whole of the Pacific Coast was made out of bounds for Japanese Americans and almost all of them were rounded up in detention camps.  Many of these hapless detenues were born on American soil who had never thought of themselves as anything remotely Japanese!  The racial origin was the only basis for their incarceration and deprivation of citizenship rights.

The challenge to this inhumanity and indignity made its way to the Supreme Court which in Korematsu v United States [323US. 214(1944)]. The majority, speaking through Hugo Black steered the basis of the discrimination away from race and located it in military expediency.  Dissenting opinions of Justices Murphy, Robert Jackson and Owen Roberts were scathing. Murphy termed the action as resembling "the abhorrent and despicable treatment of minority groups by dictatorial tyrannies which this nation is now pledged to destroy."    Justice Jackson was also brutal when he said, 'A military order, however unconstitutional, is not apt to last longer that he military emergency.  Even during that period, a succeeding commander may revoke it all. But once judicial opinion rationalizes such an order to show that it confirms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination…'.

The Korematsu decision was considered a black mark for the Court which failed to rise to the occasion to protect the right to life and dignity of thousands of citizens as it mistakenly felt that in a moment of crisis or an emergency, discretion to opt for inaction against executive overreach was the better part of judicial valour.

In 1980, long years after the atomic explosions in Hiroshima and Nagasaki had brought the Pacific War to an end, the United States Congress felt the need to constitute a Congressional Commission on Wartime Relocation and Interment of Citizens.  While the Congress has oversight over the executive, the Commission did not hesitate to conclude that "each part of the decision, questions of both factual review and legal principles, has been discredited or abandoned".  It was of the opinion that "Today the decision in Korematsu lies overruled in he court of history."

President Reagan in fact honoured many of the detainees and also ensured that they were given compensation in restitution.

In fact, on 20.05.2011, Acting Solicitor General Neal Katyal issued an unprecedented statement denouncing Charles Fahy, the Solicitor General during that time for having "suppressed critical evidence" from the Korematsu Court.

While the Congressional Committee had concluded that Korematsuhad been overruled in the 'court of history', it was finally buried by the 'court of law' itself in Trump v Hawaii when Chief Justice Roberts fell back on Justice Jackson's dissent to hold for the majority that "Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and –to be clear-has no place under the Constitution. It was left to Justice Sonia Sotomayor to point out the irony in her dissent.  She reminded the Court that while it was righting the historical wrong of Korematsu, it was at the same breath validating the equally racist Muslim Travel Ban of the incumbent President.

I have fallen back upon Korematsuas the parallels are for all to see.  A strong executive. A public emergency.  A demonized people-based on religion or occupation or on migration and a Court only too eager to surrender in the name of the survival of the nation. If one factor sticks out in this equivalence exercise it is the absence in the recent Indian Supreme Court decisions of any brave dissent-like the searing words of Robert Jackson-which appealed to the conscience of the future Court.

In the recent times, especially magnified during the pandemic induced unfolding human tragedy on gargantuan proportions, the ultimate keeper of the Constitution- the apex court-has washed it hands off issues to which its attention has been drawn. Some of these issues are:

• denial of wages to workers
• absence of effective transportation and other facilities for migrant workers
• lack of access to testing facilities and protective gear
• denial of speedy internet connection
• concessions and bail out for industry-such as payment of taxes and compliances

Conceded that in most cases persons have rushed to Court with have baked petitions and often ulterior motives.  The anguish and the irritation of their Lordships are understandable.  Many times the cause espoused is bizarre, take for example the petition seeking exemption for lawyers from having to pay rent to their landlords. Recently I had to appear in a petition where in the High Court the public interest litigant was seeking a direction to all COVID survivors to mandatorily donate plasma!

However, it cannot be said that all causes were bogus. The visuals of the stream of migrants walking long distances on the road to their home, children and pregnant women with their agony accentuated have made their way to all our homes. Even the most inert has been stirred by these heart-breaking events. None can seriously dispute that at the root of this human tragedy is the sheer incompetence and insensitivity of the bureaucratic state.

Faced with such rampant violation of the rights of the poor all across, if the apex court opts to transform itself into an oasis of rectitude for the executive, it is a constitutional tragedy several kilotons the lethal capacity of ADM Jabalpur.

Let us now take up the usual defences.

Badly drafted petitions: The Court has on many occasions made abundantly clear that the public interest litigant has no proprietary claim over his litigation.  Its task is over when it has brought the public interest issue to the consciousness of the Court.  In several cases such as the one relating to environment, prison reforms, deportation of aliens and food security, the Court has been known to have go on to appoint reputed counsel of standing as amicus curiae and even constituted expert committees with the sector gurus to assist it.  Therefore, if the Court had a sincere desire to address the wrong flagged in any public interest petition, it would not sacrifice its sentinel role at the alter of bad drafting.

Matters of Policy: The Court in Vineet Narain went ahead to set the revolutionary agenda for putting into place the vigilance architecture for the government.  The Government's statutory response in the form of the Central Vigilance Commission Act, 2003 followed.  The same can be said about sexual harassment at the workplace.  The Court set the agenda in Vishaka's Case.  The Parliament only followed with the Sexual Harassment of Women at the Workplace Act, 2013.  Even when it came to matters covered by inadequate legislation, such as the law governing pre-natal diagnostic techniques, the Supreme Court in CEHAT's case lay down the guidelines which prompted the Parliament to dramatically rehaul the legislation.  Therefore, the defence that it would tread on policy matters simply does not stick.

Difficult to Monitor:  This defence has been specifically invoked when the Court was moved to intervene in favour of the hapless walking migrants.  News reports suggest that the Court expressed its inability to intercede and pass orders as it would be difficult to implement those orders. This defence also is thin as tinsel as anyone familiar with the history of the Court would be well aware that in the matter of environment, the Court has in fact set up a monitoring committee, the complaint against which, especially after the recent sealing drive in the capital, was that it was supplanting the executive.  In the case on street vendors, the Court has gone as far as to make the local Station House Officer and the Sub-Divisional Magistrate accountable to ensure its orders are implemented, going as far as to clarify that such officers would be held personally accountable for any default.

Public Emergency, Sarkar knows best:  I think Justice Jacksons' dissent, which I have cited earlier, more than adequately exempts me from having to say anything further.

India's Supreme Court sadly faces its Korematsu Moment.  Inaction, diffidence, sending the ball back to the executive's court-sadly damage the credibility of the institution more than anything else.  Like in Korematsu's Case, it would be wise to remember that with time, there will be another Parliamentary Oversight Committee, there will be another succeeding Solicitor General and there will be another successor Court.  Of Couse, the Court of History is a given.

When a Court which readily wades in to takeover and manage a cricket body, expresses reluctance to weigh in in favour of the migrants killed in their sleep by the wheels of a goods wagon or the little child who catches his sleep on top of a suit case his mother is dragging barefeet-all that the hapless constitution lover can say is "THAT'S NOT CRICKET!"

(Sanjoy Ghose is a Delhi-based advocate)

The views expressed are personal. 

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